United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-40050
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ORLANDO SERRANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:02-CR-808-2
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Jose Orlando Serrano (Serrano) appeals his 57-month sentence
for conspiracy to possess with the intent to distribute
marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. He
argues that the district court’s imposition of a two-level
increase in his base offense level pursuant to U.S.S.G.
§ 2D1.1(b)(1) for possession of a dangerous weapon violates
United States v. Booker, 125 S. Ct. 738 (2005), because the facts
supporting the adjustment were neither admitted by him nor proved
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40050
-2-
beyond a reasonable doubt to a jury. “An appellate court may not
correct an error the defendant failed to raise in the district
court unless there is (1) error, (2) that is plain, and (3) that
affects substantial rights.” United States v. Mares, 402 F.3d
511, 516, 520 (5th Cir. 2005) (internal quotation marks and
citations omitted), cert. denied, 126 S. Ct. 43 (2005). Serrano
has not satisfied the third prong of the plain error test because
he has not shown that “the sentencing judge--sentencing under an
advisory scheme rather than a mandatory one--would have reached a
significantly different result.” Id. at 521.
AFFIRMED.